Monday, June 27, 2005

In a blow against the religious right who want to make this Country a "Christian" nation, the Supreme Court today affirmed the lower courts' decisions to require counties to remove displays of the Ten Commandments from courthouse walls. Souter's incisive opinion takes off the veneer of legality from the arguments and lays bare the plain intentions of those erecting their displays. Much as with Romer v. Evans, this Court said that it is acceptable to look into the real purposes behind what is being done. More or less he wrote, everyone knows what this is all about, and it's not okay.

Speaking of the hypothetical neutral observer who might view these proceedings, concluding that he would 'throw up his hands' after trying to decipher the non-religious purpose of the displays, the Court writes:

"If the observer had not thrown up his hands, he would probably suspect that the Counties were simply reaching for any way to keep a religious document on the walls of courthouses constitutionally required to embody religious neutrality."

7 comments:

Anonymous
said...

Good for Souter. Wasn't this the guy that was supposed to be a "home run" for conservatives when Bush I appointed him? He's been a remarkably fair justice. Hopefully we can say the same about Bush II's eventual nominee (but don't bet on it)

When the courts said the Kentucky counties couldn't just display the Ten Commandments, they tacked up some religious-sounding quotations from various other documents next to the Ten Commandments and then tried to claim that this exhibit was merely trying to show how American law was based on the Ten Commandments.

The Courts were not fooled. In addition to LTG's quote, Souter also wrote drily that in a display purporting to show the basis of American law, it was, "baffling to leave out the original Constitution of 1787 while quoting the 1215 Magna Carta even to the point of its declaration that 'fish-weirs shall be removed from the Thames.'"

Then Souter pointed out that trying to tout the Ten Commandments as the basis of American government was a dubious idea anyhow. In a sentence certain to anger blindly religious conservatives, Justice Souter wrote that an observer would be "perplexed" by the implied linkage because, "the Commandments are sanctioned as divine imperatives, while the Declaration of Independence holds that the authority of government to enforce the law derives 'from the consent of the governed.'"

Is our religious liberty retained? Gentlemen, there were two 10 Commandment cases today, 10 opinions issued, and absolutely no guidance for lower courts.

In the case of the 12 ft. monument of the 10 commandments in Texas, the Court allowed the display. Both votes were 5-4. Monuments that were erected to advance religion (as in Kentucky), are unconstitutional.

In the case of Texas, the monument was "non controversial" and had been around for 40 years. It was surrounded by other monuments that were non-religious. The group that donated the monument was a civic group (the Fraternal Order of Eagles, who donated 4000 such monuments across the country in the 1950s), not a religious group. Thus, it did not meet the standard of proselytizing. This is allowed. The standard: Would a reasonable person see your display as an "explicitly religious statement"? And remember, there were very serious dissents on both of these cases.

We have precedents allowing public display of religious symbols on civic property, so long as there are other symbols. So you can put a nativity on the court house lawn as along as you allow a menorah as well.

Perhaps, what was most interesting to me today was an exchange between Day To Day 's Madeline Brand and Rev. Rob Schenk, president of the National Clergy Council why it mattered so much to have the 10 Commandments posted, why not, he asked, keep your religion as a private matter. The response was somewhat perplexing to me. The preacher said, "There is nothing like the public forum to affirm the value of certain speech." He said that in other cases, Courts had allowed people to wear tee-shirts in the court that said "F-you" so why no allow more "positive" forms of speech in the courthouse? I somehow think that his example is rather specious.

Then he argued that by not displaying things like the 10 commandments publicly, you are bringing their value into question. Really? You think so? Hummm, very interesting, Dr. Freud. So it seems that you need to display your 10 Commandments or other religious symbols in order to cure some form of insecurity you have? You aren't confident enough in your beliefs or in their staying power that you need public affirmation?

He seemed to agree that if a majority of a community wanted to post the 4 Pillars of Islam in the Court House, then that would be OK, but remember, the 10 commandments are part of our "legal tradition". OK, so do any of the Citizens know if our enlightened forefathers kept a copy of the 10 Commandments on this Convention desk for reference- to make sure they all got codified? Do we have anything on the Constitution about coveting neighbor's wives, or taking the lord's name in vain? Oh, and it must be the 14th Amendment that requires us to keep holy the Sabbath? And then this guy says that most of the world's religions believe in the 10 Commandments and the values they promote. Again, Really? Which ones? Thou shalt not Kill, Thou shalt not steal? Well, guess what, it didn't take the 10 Commandments to make those things wrong.

In answer to the 'Fuck You' T-shirt - every citizen is free to wear a 10 Commandments T-shirt. But the government can't frame it and put it up.

The two cases retain the current jurisprudence, which is a mess, but better than the alternative the right wingers want. Anyone who has studied the Lemon test will tell you it's as bad as it gets. If you WANT to put up religious statements, but are hoping to find some "safe harbor" to evade the separation of church and state, that is getting harder and harder. The SC's ruling is that it will look at the real purposes. The dissent wanted to say something like "if you put up a menorah next to a creche, it's okay." The SC has never ruled that, btw. It asks about the "totality of the circumstances" or (as Breyer put it) each case is "fact intensive." The BIG POINT is that the SC is going to continue to analyze each case as it comes, and it will look even more to the underlying purposes. It also said, importantly, that you can't just keep erecting slightly less religious displays until you 'pass muster' somehow. The courts will recognize that your goal in all that is to try to find some reason to stick religious stuff on the wall, and will strike it down.

It's a good faith test. Are you trying in good faith to talk about history, or are you using it as a pretext to talk about religion? Conservatives hate these kinds of tests because they want to use such pretexts to advance an agenda hostile to our constitutional principles. Souter correctly said (not in so many words) that the counties in Kentucky were advancing arguments in bad faith, and we all know they just wanted to proselytize their evangelical crapola.

I think these two rulings are yet another case of this Court acting in the most cowardly and non-committal way possible. How Stephans could flip flop like he did on these two cases and still consider himself an intelligent man is beyond me. Perhaps the lawyers among us could explain his schizophrenia on this issue.

My take on the two cases together is that it is a status quo decision. The Texas monument is OK largely because it has been there for a long time. The Kentucky plaques are not OK because they were put up recently. So the Court (or more specifically Chicken Stephans) is saying that if your public buildings are already overtly Christian, you don't have to change them to be neutral, but if your public buildings are currently neutral you can't add overt religiosity to them. It makes sounds political sense and is the kind of thing I would expect if a legislature were deciding on this. But we need the Court to rule on the basis of the Constitution and it is impossible to have any confidence in this Court if individual judges cannot even keep their interpretations of the Constitution consistent from one ruling to the next in the same session!

I do not feel that my religious freedom has in any way been preserved by these rulings. At best, I am persecuted only to the same degree I was before.

Regarding the Founding Fathers' attitudes towards religiosity and publica spaces: I have posted several times about what Jefferson and Madison thought about the seperation of Church and State. They were very strict on the subject. Jefferson was openly hostile to Christianity as a religion. Madison vetoed bills to pay for a Congressional Chaplin (so they did swet the little stuff).

If there was a copy of the Ten Commandments on the wall of the room where the Constitution was debated, I'm sure Madison and Jefferson did not contribute their money to its upkeep.